On January 23rd 2009, Ms. Kanagaratnam and her 3 minor children M. , G., A. claimed asylum at the passport control of the airport of Brussels (art.50ter law December 15th 1980). They were refused entry and ordered to be deported (art. 52/3 §2) because they claimed asylum without possessing a valid passport and visa (art. 2 §2). An order for their detention in the immigration center “127 bis” (Steenokkerzeel) for 2 months was taken (art. 74/5 §1 2o) because they claimed asylum without possessing a valid passport and visa.

On March 20th 2009, Ms. Kanagaratnam and her 3 children filed an application with the ECHR on the ground that their deportation to Sri Lanka via DRC will be a violation of article 3 of the Convention. They added that their detention was a violation of article 3 and 5-1-f) of the Convention. The Court requested the suspension of the deportation order (Rules art.39). On the same day, an order of detention of the family for 2 months was taken on the basis that they refused to board the plane to DRC.

On March 23rd 2009, the family filed a 2nd asylum claim. Immediately, another order of detention was taken for 2 months (art. 74/5 §1 2o). During their whole detention, the family made 2 requests to be released (art. 71§2) which were both denied by the appeal court of Brussels. The 2 appeals to the supreme court were also rejected. On May 4th 2009, the family was released by administrative decision. On September 2nd 2009, the family was granted refugee status by administrative decision of the Commissioner general for refugees and stateless persons (CGRA).

Mr. Tristan Wibault of the NGO Belgium Committee to Help Refugees (Comité Belge d’Aide aux Réfugiés) found the judgment to be a positive development of the case-law regarding the detention of asylum seekers.

In 2004, Ms. A.Y arrived from Guinea to claim asylum. She alleged to have been detained, tortured and raped by military officers in 2003 due to her political activity in U.F.R party. In May 2005, she moved in with her partner a EU citizen from Netherlands. In 2006, she suffered an miscarriage which ended her pregnancy. On June 4th 2009, Ms. A.Y and her partner registered a civil partnership (PACS)with the intent to get married at a later date.

The French government never transposed the articles 2-2-b) and 3-2-b) of the directive 2004/38/EC in national law (code of migration and asylum). These articles allow registered partner and partner in durable relation with a EU citizen to obtain a 5 years residence card upon registration. The deadline of the transposition of the directive 2004/38/EC was April 30th 2006. On July 25th 2008, the European Court of Justice ruled in case Metock (C-127/08) that any EU citizen’s family member have legal status under the directive 2004/38/EC irrespective of the lawfulness of his entry or stay before becoming a family member (99). The Court added an unlawful stay before becoming a family member can’t be a ground for deportation of the family member (97).

In its observation to the Court, the French government didn’t allege that the personal conduct of Ms. A.Y represents any “threat affecting one of the fundamental interests of society” . But it stated if the applicant is deported to Guinea, the couple could live there.

In its decision of October 11st 2011, the Court found that the deportation order to Guinea was in “accordance with the law“. On the contrary, the deportation order on the ground of “unlawful stay” (art. L511-1 of the code of migration and asylum) was taken in violation of articles 3-2-b) and 27 of the directive 2004/38/EC and the ECJ judgment Metock (C-127/08). The Court added that from May 2005 to April 2009, the couple couldn’t have a “legitimate expectation that right of residence would be granted to the applicant“. On the opposite, the applicant should have a legitimate expectation that the French government will respect the directive 2004/38/EC and the case-law of the European Court of Justice, and acknowledge her right of residence.

But the deportation order has not been canceled or suspended by the French government as there is no provision in the French law that allows to cancel or suspend the deportation order of a suspect in a police investigation. The applicant was represented by Me Bérenger Tourné (Paris).

On December 15th 2002, Ms. Yekaterina Popov arrived in France from Kazakhstan, to seek asylum. On June 10th 2003, her husband Mr. Vladimir Popov joined her. On January 20th 2004, they were denied refugee status by OFPRA. On May 31st 2005, their appeal to the CRR was rejected. On n/a another application for refugee status was made by the family.

On August 27th 2007, the applicants and their two children (five months and 3 years old) were arrested and detained in police custody on an investigation for “illegal stay“. Then they were detained in an hotel in Angers before being transferred to the immigration detention center of Rouen-Oissel.

On September 10th 2007, the applicants filed their application with the ECHR arguing a violation of articles 3, 5-1-f) and 8 of the Convention due to their detention with their children in police custody and in the immigration detention center. In addition they complained of the violation of articles 3 and 8 if they were to be deported to Kazakhstan. On September 12th 2007, the applicants and their children were released. On July 16th 2009, the CRR granted them refugee status.

It awarded the family €10,000 for moral damages and €3,000 for legal fees. The applicants were represented by Me Denis Seguin.

Surprisingly, the Court found no violation of article 5-4 for the parents on the ground that a judge ruled on the legality of their detention at the request of the immigration office. Under French code of migration and asylum, the parents were not entitled to take any proceeding by which the lawfulness of their detention shall be decided (habeas corpus). The Court also didn’t rule on the allegations of violations of the Convention during the detention of the family in police custody.